Boyce v. Wheeler

ALLEN, J. This is an action for slander. The suit was instituted in the circuit court of Boone county, where a trial was had, resulting in a verdict and judgment in favor of plaintiff for $171, but on defendant’s appeal to the Kansas City Court of Appeals, the judgment was reversed and the cause remanded. Thereafter the case went on change of venue to Audrain county, where a trial before the court and a jury resulted in a verdict and judgment for piaintiff for $2000 actual damages and $1000 punitiye damages. Prom this judgment the defendants prosecute the appeal before us. In the testimony reference is made to a trial said to have been had prior to that first above mentioned, at which the jury failed to agree upon a verdict. But the record proper contains nothing with reference thereto. — 300 — The amended petition upon which the canse was last tried alleges that on June 25, 1910, in the city of Columbia, Boone county, the defendant Ella IT. Wheeler, wife of her codefendant A. B. Wheeler, while in the home of plaintiff, “spoke of and concerning the plaintiff, in the presence and hearing of Daisy Cowden and R. M. Wyatt, the following false and slanderous words, to-wit: “This is my bowl and pitcher; you (meaning Mrs. Joe Boyce, the plaintiff) have taken them; you (meaning Mrs. Joe Boyce, the plaintiff) have taken ten dollars’ worth of dishes from me (meaning from Ella II. Wheeler, the defendant); you (meaning Mrs. Joe Boyce, the plaintiff) took my decorated set of china; if you (meaning Mrs. Joe Boyce, the plaintiff) don’t get it — -its here — (meaning in the house of plaintiff) I will use the law on you’, thereby meaning to charge the plaintiff with the crime of larceny or embezzlement, and was so understood by the persons present hearing said words to charge the plaintiff with crime of larceny or embezzlement, in the stealing and taking away of said bowl and pitcher and decorated chinaware .and dishes, described as aforesaid, the property of defendants.” The prayer is for $2000 actual and $3000 punitive damages. The answer is a general denial. It appears that plaintiff rented from the defendant Ella II. Wheeler a house in Columbia, Missouri, said defendant and her husband retaining and occupying two rooms therein for a time. After defendants had surrendered these rooms to plaintiff, and while plaintiff continued to occupy this house with her family, defendant Ella H. Wheeler, having procured the issuance of a search warrant, came to plaintiff’s home with a constable for the purpose of obtaining some dishes which she claimed as her property. According to the evidence the constable came upon the front porch of the house and knocked at the door; and when plaintiff appeared he read the search warrant to her, and thereafter he and plaintiff engaged in some conversation concerning the matter. In the meantime defendant Ella H. — 301 — Wheeler, having entered by a rear door, went through plaintiff’s house searching for the articles which she claimed as her property; and in a few minutes appeared upon the front porch, having in her hand a bowl and pitcher which she had taken from the house. Thereupon the alleged slanderous language is said to have been uttered by this defendant, in the presence of the' constable and plaintiff’s daughter;, and according to plaintiff’s testimony one Daisy Dodson was also present, but she did not testify. Plaintiff testified that Mrs. Wheeler shook her fist at plaintiff and, with' appearance of much anger, said: “Here’s my bowl and pitcher you took; you pack up and get my dishes you have taken. If you get those dishes and pack them up and let me take them out this evening I won’t use the law on you, but if you don’t I will use the law on you.” Later in her testimony plaintiff says: “She (Mrs. Wheeler) opened the door and stepped out, she set them down in front of my feet and walked up to me this way (indicating) and says: ‘Here is my bowl and pitcher you have taken, and you get my other dishes,’ naming them, decorated chinaware, saucers, bowl and pitcher, and white cups and preserve stands, and she says: ‘You pack them up so I can take them out with me this evening, and if you don’t I am going, to use the law until you do get them.’ . . . She kept saying you get them and pack them up. I says, Mrs. Wheeler, don’t you say I stole, and she says, you taken them.” The constable testified that Mrs. Wheeler said: “Here’s my bowl and pitcher and you have got my decorated chinaware and dishes (naming them) to the value of $10. If you will pack up my dishes, let; me have them this evening and take them with me, why we will drop this thing (or words to that effect). If you don’t I will use the law on you.” Plaintiff’s daughter testified that Mrs. Wheeler ¿.aid: “This is my bowl and pitcher you have taken, Mrs. Boyce. You have taken my decorated cups and sau — 302 — cers and other chin-aware amounting to $10. If you don’t get them .1 will use the law on you till I do get them.” The witnesses produced at the trial, who were present and heard the language used by Mrs. Wheeler, testified that they understood the words uttered by her to impute that plaintiff was guilty of having stolen the bowl and pitcher and the dishes. Defendant testified that she merely said to the constable, “this is my bowl and pitcher;” and denied that she spoke the words alleged. It appears that thereafter the bowl and pitcher were returned to plaintiff at Mrs. Wheeler’s direction. Upon the former trial (161 Mo. App. 504), which resulted in a verdict and judgment in favor of plaintiff for $171, there was neither pleading nor proof that the alleged slanderous words were understood by those who heard them to impute to plaintiff the commission of a crime. Upon appeal from that judgment the Kansas City Court of Appeals, in an opinion by Ellison, J., said: “The words above set out do not necessarily charge larceny, or other criminal offense. To charge one with having another’s property is by no means a charge of having it criminally. Nor does a charge of having taken another’s property obviously or necessarily charge theft or other violation of the criminal law. The additional threat to ‘use the law on you,’ might well have meant the institution of a civil action, maybe replevin. So, therefore, the petition should charge and the evidence should show that tlie words were understood by those who heard them to impute to plaintiff thé commission of a crime. [Lewis v. Humphries, 64 Mo. App. 466, 471; Unterberger v. Scharff, 51 Mo. App. 102; Walker v. Hoeffner, 54 Mo. App. 554.]” After the cause was remanded, plaintiff amended her petition'in conformity with the views expressed in that opinion, as appears from the allegations of the amended petition above quoted. And, as said, witnesses who were present and heard the words testified that they — 303 — ■understood them to impute to plaintiff the commission of a criminal offense, i. e., that plaintiff had stolen the articles mentioned. I. The first insistence of appellants is that the trial court erred in overruling their objection to the introduction of any evidence, based upon the ground that the petition wholly failed to state a cause of action. The argument advanced in support of this contention appears to proceed upon a misconception of the force and effect of the former decision of the Kansas City Court of Appeals in this case. It is true, as said by Ellison, J., supra, that the words alleged to have been uttered do not necessarily impute a criminal offense, but on their face they are quite readily susceptible of that meaning. To state a cause of action, however, it was necessary not only to aver, by way ,of innuendo, that the defendant, Mrs. Wheeler, thereby meant to charge plaintiff with the crime of larceny, or other criminal offense, but to allege that the words were understood by those who heard them to impute to plaintiff the commission of such crime. “The slander and damage consist in the apprehension of the hearers.” [See Townsend on Slander & Libel (4 Ed.), p. 641; Walker v. Hoeffner, supra, l. c. 560; Lewis v. Humphries, l. c. 469; Israel v. Israel, 109 Mo. App. l. c. 382, 84 S. W. 453; Julian v. Kansas City Star, 209 Mo. 35, 107 S. W. 496; Diener v. Star-Chronical Pub. Co., 230 Mo. 613, l. c. 629, 132 S. W. 1143; Peak v. Traubman, 251 Mo. 390, 158 S. W. 656.] In the amended petition before us, plaintiff has made the necessary allegations as to the sense in which the words were understood by the hearers, thus making the petition conform to the ruling on the former appeal. Appellants’ counsel seem to think that further allegations by way of inducement were necessary. But we regard it as entirely clear that this view is unsound. No special extrinsic facts are required to be here alleged in order to bring out the defamatory meaning of the words. They are susceptible of an injurious meaning, and it was a question for the jury to determine, — 304 — under the facts and circumstances in evidence, the sense in which they were used and how they were understood by the hearers. They are alleged to have been spoken in an injurious sense and to have been so understood, and the evidence suffices to warrent a finding supporting these allegations. And after verdict the court will take the words as having been used and understood in the sense in which the jury must have found that they were used and understood in order to return a verdict for plaintiff. [See Jones v. Banner, 172 Mo. App. 132, 157 S. W. 967.] In Christal v. Craig, 80 Mo. 367, cited and relied upon by appellants, one charge in the petition was that defendant spoke of plaintiff these words: “You have took my pocket-book and money, and you got it there in your bucket.” The various charges in the petition were followed by a general innuendo, viz: “He, the defendant, thereby meaning to charge plaintiff with being guilty of the heinous crimes of perjury, larceny and adultery.” Referring to the words quoted above the court said: “We do not think these words actionable per se without some explanatory averment showing their application. If they were intended and understood to impute the crime of larceny, they would he actionable per se. But the question of pleading is, do they, on their face, without more, convey such' imputation? To say you have my pocket-book or money in your bucket, does not necessarily or legally imply its theft. The party might • reasonably have taken it under claim of right, or through mistake or in sport.” - The petition in that ease, as to the charge mentioned, was deficient in like manner as was plaintiff’s herein on the former appeal. It is distinctly held, however, that if the words were intended and understood to impute the crime of larceny, then they were actionable per se, i. e., injurious per se and actionable without proof of special damage. It is quite clear that the case is not authority for the position which appellants here take. — 305 — Neither do we perceive anything in decision in Vanloon v. Vanloon, 159 Mo. App. 255, 140 S. W. 631, cited by appellants, which lends support to their contention. The case of Moore v. Johnson, 144 S. W. 765 (Ky.) is also cited, but it is unnecessary to go beyond our own adjudicated cases, and express approval or disapproval of those from other jurisdictions, iii order to determine the question under consideration. II. It is also insisted that the court erred in refusing to direct a verdict for defendants. In so far as the argument advanced in this connection is predicated upon the idea that the petition. states no cause of action, it is disposed of by what has been said above. It is contended, however, that the words alleged to have been uttered are not actionable without proof of special damage. This contention seems to be based upon the assumption that because the words do not unequivocally and in direct terms charge a criminal offense no recovery can be had without allegation and proof of special damages entailed by the speaking thereof. But this view is unsound. [See Christal v. Craig, supra.] With the exception of defamatory words touching one’s fitness for integrity in office, or which prejudice one in his trade, profession or business, oral words are actionable without proof of special damage, under our-law, only when they impute the commission of an indictable offense punishable by corporal punishment (Birch v. Benton, 26 Mo. 153) or impute a loathsome, contagious disease such as would tend to exclude one from society (Lowe v. DeHoog decided by this court April 4, 1917, not as yet reported) or (by statute) which' impute to a woman unchastity. [Vanloon v. Vanloon, supra.] As to this classification of the different species of oral defamation see 25 Cyc., pp. 264, 265, bearing in mind that in this State words which impute a crime are actionable without proof of special damage, irrespective of whether or not the 'offense charged may be legally said to involve “’moral- turpitude.” [Birch v. Benton, supra.] But where words — 306 — charge a crime, a contagious disease or unchastity, within the above rule, to be actionable without proof of special damage it is not necessary that any particular word or phraseology be used to denote the crime, the contagious disease or unchastity. [Hauser v. Steigers, 137 Mo. App. 560, 119 S. W. 52; Lowe v. DeHoog, supra; Vanloon v. Vanloon, supra.] Any words fairly susceptible of constituting the alleged charge, and which the hearers may naturally understand as intended to convey such meaning, are sufficient. If the jury ■ find from the facts in evidence that by such words the defendant meant to impute to the plaintiff a crime, as alleged, and that they were so heard and understood, damage is presumed to flow from their injurious character. And the demurrer to the evidence admits every fact which the jury might reasonably infer from all the facts and circumstances shown in evidence. [See Peak v. Traubman, supra, l. c. 413.] In Hauser v. Steigers, supra, the words alleged and shown to have been spoken were: “ (1) I know all about that waiter; there was five dollars in the pocket-book. (2) That waiter has got the pocket-book; there was five dollars in the pocket-book.” As here the words did not necessarily charge a crime; matters of inducement and an innuendo were pleaded, but there was neither allegation nor proof of special damage suffered. The trial court instructed the jury that if they found that defendant uttered the words meaning to charge the plaintiff with larceny, and that they were so undestood by those who heard them, then the law presumed that plaintiff was damaged thereby. A verdict of $850 actual damages and $500 punitive damages was unanimously affirmed by this court. In Rammell v. Otis, 60 Mo. 365, cited by appellants in this connection, the language of the opinion upon which appellants evidently rely was used in connection with the second count of the petition which alleged that the defendant had charged plaintiff with keeping false books. No crime was imputed to the plaintiff; and what was said as to the necessity of alleging and proving special damages under the circumstances has, in any event, no — 307 — application to the case before us. Likewise what was said in Curry v. Collins, 37 Mo. 324, as to the charge that the defendant called the plaintiff a “bushwhacker,” is wholly without application to the pleadings and proof in the instant case. We regard it as altogether clear that the trial court committed no error in refusing to direct a verdict, for defendants. III. Eleven instructions were given at plaintiff’s request. Plaintiff’s instructions numbered one and two. in the abstract before us, are as follows: 1. ‘ ‘ The court instructs th'e jury that there is no evidence in this case showing or tending to show that Mrs. Joe Boyce, the plaintiff, ever stole or embezzled the goods mentioned in plaintiff’s instructions number one and two (sic), or*any part of said goods, and under the evidence in this case it is your duty to regard the said Mrs. Joe Boyce not guilty of any such act.” , 2. “The court instructs the jury that in this case there is no justification pleaded and the defendant Ella H, Wheeler does not allege that the words she is charged with speaking of and concerning the plaintiff were true, and if you find and believe the defendant Ella H. Wheeler spoke of and concerning plaintiff the words set forth in plaintiff’s instructions numbers one and two (sic), and thereby charged and intended to charge that Mrs. Joe Boyce did commit the crime of larceny or embezzlement and the words were so understood by the person or persons who heard them, then the verdict must be for the plaintiff.” Plaintiff’s instructions, as they appear in this record, bear numbers evidently not intended by plaintiff’s counsel when they were prepared; for the foregoing instructions, as well as others given for plaintiff, refer to “plaintiff’s instructions numbers one and two,” evidently meaning plaintiff’s instructions here numbered three and four. Whether the instructions are here out of their original order or were improperly numbered below, we know not. — 308 — As to plaintiff’s instructions one and two, supra, complaint is made of the action of the court in telling the jury that there was no evidence that plaintiff had stolen or embezzled the property in question and that she was to be regarded as not guilty of such act, and in referring to the fact that defendants did not plead the truth of the words by way of justification. There was no issue before the jury as to plaintiff’s guilt or innocence. Indeed the charge alleged to have been imputed to her was presumably false, and defendants did not seek to combat this presumption. By the first instruction, and the first part of the second, the court evidently sought to guard against a false issue which, under the circumstances, might have arisen in the minds of the triers of the fact. There was testimony pro and con respecting the ownership of the bowl and pitcher and considerable testimony as to the acts of the respective parties, plaintiff and Mrs. Wheeler, in connection with the same, whereby the jury might have been led to believe that the truth of the charge alleged to have been imputed to plaintiff was an issue to be determined' by them. “It is not only the office of instructions to inform the jury as to the law of the issues raised, but where the evidence is of a character as might easily lead to the .raising of a false issue, the court ought to guard against such an issue by appropriate instructions.’’ [See Estes v. Desnoyers Shoe Co., 155 Mo. l. c. 588, 56 S. W. 316.] The first instruction, however, treats the matter as though it were an issue, and tells the jury that because of the lack of evidence on the subject plaintiff is to be reguarded as not guilty of the offense alleged to have been imputed to her. Whether or not it was prejudical error to give the instruction in this form we need not decide, since we are of the opinion that prejudicial error otherwise appears. ■ V. IY. Complaint is also made of instructions on malice, upon the theory that malice in law could not be implied from the speaking of the words alleged; and that it was necessary that the jury find actual malice. But — 309 — .this view is quite untenable. Where false words are defamatory and actionable, or may properly be found to be so, and no privilege whatsoever attends the speaker, malice is implied from the utterance thereof,- i. e. legal malice — the intentional doing of a wrongful act without just cause or excuse. It was not necessary that actual spite or ill will be found. The instructions appear to have dealt with the matter of malice at unnecessary length, but we cannot say that reversible error thus intervened. Y. However, one of the instructions complained of, plaintiff’s instruction number eight, appears to be erroneous, in that it purports to tell the jury what will constitute all that plaintiff “is bound to prove” to en-entitle her to recover, but omits therefrom matters essential to a verdict in her favor. This instruction is as follows: “The court instructs the jury that it is a criminal offense under the laws of the State of Missouri to steal, take or carry away the property of another or to embezzle the property of another, and in this case if you believe that the defendant Ella H. Wheeler uttered the words set forth in the plaintiff’s first and second instructions, intending thereby to charge that, plaintiff had stolen or embezzled property belonging to Ella H. Wheeler, then the law presumes that the defendant Ella H. Wheeler intended maliciously to injure the person against whom they were spoken unless the contrary appears from the circumstances, occasion or- manner of speaking the words but all the plaintiff is hound to prove in this case to entitle her to recover is the speaking by the defendant Ella H. Wheeler of enough of the words set forth in plaintiff’s first and second instructions to amount to the charge that the plaintiff stole or embezzled property belonging to the defendant Ella H. Wheeler and to express malice or ill-will, need not be proved. ’ ’ The “first and second instructions”'referred to in the instruction last above quoted do not — as they here — 310 — appear — contain the alleged words. As said above, counsel evidently meant to refer to plaintiff’s third and fourth instructions. But this we pass. It will be seen that while the early part of this eighth instruction tells the jury that if they believe that the words were spoken “intending thereby to charge that plaintiff had stolen or embezzled property belonging to Ella H. Wheeler” then the law presumes malice, the latter part of the instruction declares without qualification that all that plaintiff need prove is the speaking of enough of the words “to amount to the charge that the plaintiff stole or embezzled property belonging to the defendant Ella H. Wheeler.” Not only does this part of the instruction purport to state all that plaintiff need prove, while omitting to require a finding that defendant meant to convey the imputation that plaintiff was guilty of a criminal offense, but nowhere does the instruction require a finding that the hearers so understood the words. Two of plaintiff’s instructions — here numbered three and four — each purporting to cover the entire case and directing a verdict, require the jury to find that the words were uttered in an actionable sense and were so understood by the hearers; and these instructions appear to be at least free from prejudicial error. But it was reversible error to give plaintiff’s instruction number eight, supra, purporting to cover the whole case, as shown above, and omitting elements essential to sustain the cause of action. [Traylor v. White, 185 Mo. App. 325, 170 S. W. 412; Walker v. White, 192 Mo. App. 13, 178 S. W. 254.] And the error is of such character that it cannot be cured by other instructions given. In such cases it is held that the instructions are thus rendered conflicting and inconsistent; and since it is impossible to tell which the jury followed, the faulty instruction is not cured by another or others which supply the omitted matter or matters. [Walker v. White, supra, l. c. 18, 19, and authorities there cited.] VI. It is argued that the verdict is so excessive as to bespeak passion and prejudice on the part of the — 311 — jury, calling for a reversal of ‘the judgment on this ground alone. The verdict is indeed extremely large, under the circumstances of the case. This is true as to the recovery of hoth actual and punitive damages. There is no evidence warranting a heavy verdict as for actual damages. And as to punitive damages, the fact that Mrs. Wheeler spoke the words under excitement and in. the heat of passion, according to plaintiff’s evidence, tended to mitigate rather than aggravate the recovery. [See Israel v. Israel, supra, l. c. 379.] And in this connection it may be noted that no testimony was adduced as to the financial responsibility of the defendants or either of them. All that appears as to this is the inference to be drawn from the testimony of Mrs. Wheeler to the effect that when she learned that it would be necessary to bring a replevin suit to establish her right to the property she said that she “was not able to enter into law,” and directed that the bowl and pitcher be returned to plaintiff. The assessment of $1000 exemplary damages against defendants in poor or very moderate circumstances is a severe punishment indeed, and one which appears to be here unwarranted. Upon the whole we are inclined to the view that it would be our duty to interfere — in some manner — if necessary, on account of the size of the verdict alone. But in view of the fact that the error noted above works a reversal, it is unnecessary to pass formal judgment upon this matter. The judgment is accordingly reversed and the cause remanded. Becker, J., concurs. Reynolds, P. J., concurs in reversing the judgment, but not in remanding the cause, expressing his views in a separate opinion.